Governor Healey Issues Executive Order Establishing New Requirements for Data Centers in Massachusetts

On September 8, 2026, Massachusetts Governor Maura Healey signed Executive Order No. 658, Establishing Requirements for Responsible Data Center Development and Operations in Massachusetts to Protect and Support Ratepayers, Communities, and the Environment (the “Order”) and announced the Order at a press conference. Building on the administration’s June 25, 2026 Statement of Expectations for Responsible Data Center Development and Operations in Massachusetts (the “Framework”), the Order directs state permitting agencies to withhold permits for large data centers unless applicants can meet certain requirements. The Order took effect on signing.

Covered Projects

The Order applies to “data centers” as defined in 400 CMR 9.00, that are constructed or expanded after the Order’s adoption and that either exceed 25 megawatts (MW) of peak electric demand, or, in the case of an expansion, add more than 25 MW of peak electric demand. At her press conference, Governor Healey stated that the Order will apply prospectively only. The practical implications of that limitation, however, remain unclear.

New Requirements

Section 1 directs applicable permitting agencies not to issue any permit or authorization for a covered project unless the applicant has 1) demonstrated conformance with the Framework, and 2) submitted a community benefits agreement with key stakeholders that is aligned with the Standards and Guidelines for Community Benefits Plans and Agreements established by the Office of Environmental Justice and Equity (OEJE) within the Executive Office of Energy and Environmental Affairs (EEA), as determined solely by the OEJE. Section 2 directs those same agencies, “consistent with existing authorities,” to amend their regulations to align with the Framework.

Section 5 directs MassDEP to develop protocols requiring covered projects to procure sufficient incremental new clean electricity generation, eligible under the Clean Energy Standard, 310 CMR 7.75, to meet their annual electric consumption. By December 31, 2026, MassDEP must establish an alternative compliance payment mechanism for data centers that fail to procure sufficient incremental clean electricity. Payments collected under that mechanism will be deposited into a Ratepayer Protection Fund and used to mitigate electricity supply costs for all ratepayers.

The Order also gives EEA and MassDEP an additional regulatory authority:

• Section 6 directs EEA and MassDEP to evaluate greenhouse gas emissions from covered projects under G.L. c. 21N.
• Section 7 directs MassDEP to develop protocols requiring covered projects to protect water quality and quantity, including by demonstrating compliance with applicable water, wastewater, and stormwater requirements.
• Section 8 directs EEA to establish guidance for annual reporting and disclosures by operating data centers.
• Section 11 directs all state agencies to encourage covered projects to adopt responsible labor practices, including project labor agreements, local hiring, workforce training, and registered apprenticeship programs.

Municipal Guidance and Reporting

Section 9 directs EEA, in coordination with EOED, to publish a Municipal Guidance Document for Data Center Development by December 31, 2026. The guidance is intended to assist municipalities, community organizations, and residents in evaluating proposed data center projects. Section 10 directs all state agencies to support implementation of the Order, including by responding to requests for information and guidance from municipalities actively evaluating a proposed data center project. Beginning in September 2027, Section 12 will require an annual report to the governor.

Implications

Section 14 provides that nothing in the Order shall be construed to require any action that is inconsistent with applicable state or federal law. We appreciate the governor’s efforts to establish guardrails and encourage dialogue around a contentious issue that is receiving significant attention nationwide. We note, however, that an executive order cannot unilaterally amend existing state or municipal law. Nor can an executive order circumvent the appropriate legislative or regulatory process.

Pierce Atwood will continue to monitor the implementation of the Order, including the regulations, protocols, and guidance it contemplates. If you have any questions, please contact firm Land Use attorneys Dan Bailey, Gareth Orsmond, or Kathleen Heyer.